320 F.3d 440 | 3rd Cir. | 2003
Before: BECKER, Chief Judge, ROTH(cid:13) and ROSENN Circuit Judges(cid:13) (Opinion filed: February 26, 2003)(cid:13) John M. Elliott, Esquire(cid:13) Timothy T. Myers, Esquire (Argued)(cid:13) Meredith T. Shepherd, Esquire(cid:13) Elliott Reihner Siedzikowski(cid:13) & Egan, P.C.(cid:13) 925 Harvest Drive(cid:13) Blue Bell, PA 19422(cid:13) COUNSEL FOR APPELLEE(cid:13) John R. Price, Esquire (Argued)(cid:13) John R. Price & Associates(cid:13) 9000 Keystone Crossing, 150(cid:13) Indianapolis, IN 46240(cid:13) Robert T. Carlton, Jr., Esquire(cid:13) (Argued)(cid:13) Ellisworth, Carlton, Mixell &(cid:13) Waldman, P.C.(cid:13) 1105 Berkshire Blvd., Suite 320(cid:13) Wyomissing, PA 19610(cid:13) COUNSEL FOR APPELLANT(cid:13) OPINION OF THE COURT(cid:13) ROTH, Circuit Judge:(cid:13) Carson Manufacturing Company, Inc., and Microvote(cid:13) Corporation sold an electronic voting system to Montgomery(cid:13) County, Pennsylvania. Pursuant to the sales contract,(cid:13) Microvote obtained a performance bond from Westchester(cid:13) Fire Insurance Company, Inc. The voting system(cid:13) malfunctioned in the November 1995 general election and(cid:13) the April 1996 primary election. As a result, the County(cid:13) filed a six count diversity action, alleging negligence by(cid:13) Microvote and Carson, breach of warranty by Microvote and(cid:13) Carson, breach of contract by Microvote, fraud by(cid:13) Microvote, wrongful use of civil proceedings by Microvote,(cid:13) and breach of the performance bond by Westchester.(cid:13) Carson settled with Montgomery County shortly before trial,(cid:13) and a jury returned a verdict against Microvote on the(cid:13) breach of implied warranty cause of action and against(cid:13) 2(cid:13) Westchester on the performance bond claim. Microvote and(cid:13) Westchester appealed.(cid:13) On appeal, Westchester claims that the District Court(cid:13) erred in finding that the statute of limitations did not bar(cid:13) this action. Westchester also raises various other(cid:13) challenges to the District Court’s jury charge and its denial(cid:13) of Westchester’s post-trial motions. Both Microvote and(cid:13) Westchester contend that the District Court erred in its(cid:13) refusal to admit into evidence the videotape deposition of(cid:13) defendants’ expert witness. They also claim that the District(cid:13) Court should have limited Montgomery County’s remedy to(cid:13) repair and replacement of the defective machines and(cid:13) should have off-set the judgment against them by the(cid:13) amount of Carson’s settlement with the County. For the(cid:13) reasons stated below, we will affirm.(cid:13) I. Facts and Procedural History(cid:13) On May 25, 1994, the County entered into a written(cid:13) contract with Microvote to purchase 900 direct recording(cid:13) electronic voting machines (DREs), a central computer(cid:13) system, computer software, and support services for a total(cid:13) of $3,822,000. The bid explicitly stated that it was for an(cid:13) "integrated voter registration and election system" and that(cid:13) "Microvote is bidding the entire system, as specified,(cid:13) including all requisite hardware and software." Microvote(cid:13) manufactured the system software, Microvote Election(cid:13) Management Software (MEMS), but it purchased the(cid:13) machines and their internal software from Carson. The(cid:13) contract required Microvote personnel to operate the system(cid:13) during elections through 1995.(cid:13) Pursuant to the sales agreement, Microvote obtained a(cid:13) performance bond from Westchester. The performance bond(cid:13) incorporated the sales contract by reference and contained(cid:13) a warranty that all materials, equipment, and labor will be(cid:13) furnished in a "complete and workmanlike manner." The(cid:13) performance bond required Microvote to provide(cid:13) Westchester with notice of any default. It did not require(cid:13) the County to give Westchester notice of default. Nor, did(cid:13) Westchester ever ask the County to provide notice of(cid:13) default. Westchester’s affiliate, Universal, obtained a(cid:13) 3(cid:13) $150,000 letter of credit as collateral on the performance(cid:13) bond. The letter of credit expired on June 1, 1996.(cid:13) The DREs were phased in to use over the course of three(cid:13) elections: the November 1994 general election, the April(cid:13) 1995 primary election, and the November 1995 general(cid:13) election. The November 1995 election was the first time the(cid:13) County used all 900 DREs and the MEMS software. In the(cid:13) November 1995 general election, DREs repeatedly shut(cid:13) down. This resulted in long lines, in voters leaving polling(cid:13) stations before they voted, and in lost votes. The shut-(cid:13) downs occurred because the DREs would randomly turn(cid:13) themselves into power-fail mode. Apparently, the scroll(cid:13) motors were emitting power surges to the internal computer(cid:13) chips when the brushes in the scroll motors interacted with(cid:13) the casing of the motors to generate electromagnetic(cid:13) interference. The DREs’ microcomputer chip would then(cid:13) shut down in order to protect the circuitry. Thus, when a(cid:13) voter pushed a button on a DRE to scroll to the next page,(cid:13) the scroll motor would activate, and the machine might(cid:13) randomly shut down in front of the voter. In this situation,(cid:13) the vote would be lost unless the voter re-voted. In(cid:13) addition, the MEMS software malfunctioned when counting(cid:13) the votes, causing Microvote employees to report the wrong(cid:13) "unofficial results" to the press.(cid:13) The DRE malfunctions were haphazard. William Carson,(cid:13) the President and CEO of Carson, wrote to the County after(cid:13) the November 1995 general election that "the problem(cid:13) seems to appear and disappear for no particular reason."(cid:13) Carson admitted in an internal memorandum, and in his(cid:13) trial testimony, that the DREs had problems in the(cid:13) November 1995 election. Microvote’s on-site manager in an(cid:13) internal memorandum also noted "serious problems" with(cid:13) the MEMS software. The software problems were not(cid:13) detected by pre-election testing because Microvote was(cid:13) making changes in the software up to the day before the(cid:13) election. Under the contract and Pennsylvania law, the(cid:13) system, including the software, should have been tested(cid:13) and certified prior to the election. MEMS, however, was not(cid:13) certified in Pennsylvania.(cid:13) After the November 1995 election, County officials met(cid:13) with representatives from Microvote. At the meeting, the(cid:13) 4(cid:13) County expressed its intention to return the defective(cid:13) system and seek a refund. Microvote’s Sales Director(cid:13) responded that Microvote will "make certain that in April of(cid:13) next year we don’t face any machine down time at all." On(cid:13) March 1, 1996, the Solicitor of Montgomery County notified(cid:13) Microvote that the County "considers you in default of your(cid:13) contract." Microvote claimed that additional machines(cid:13) would cure the problem and offered to provide the County(cid:13) with 390 additional "loaner" machines free of charge for the(cid:13) April 1996 primary election. The County agreed to give the(cid:13) DREs another chance. On March 13, 1996, the parties(cid:13) entered into an agreement under which the County(cid:13) maintained its position that Microvote was in breach of the(cid:13) May 25, 1994, sales contract but would use the 900 DREs(cid:13) the County owned, along with the 390 additional DREs on(cid:13) loan from Microvote, in the April 1996 election to determine(cid:13) if the system could function properly with additional DREs.(cid:13) Microvote made several attempts to cure the problems,(cid:13) including working on the motor brushes and retrofitting the(cid:13) machines with less sensitive computer chips. Nevertheless,(cid:13) the system failed again in the April 1996 primary election.(cid:13) On June 28, 1996, the County replaced the DREs with(cid:13) 1,050 machines from another manufacturer that the(cid:13) County purchased for $5,617,500, less a $1,350,000 trade-(cid:13) in allowance for the Microvote machines.1 Neither the(cid:13) County, nor Microvote, notified Westchester of the default(cid:13) and Universal’s Letter of Credit expired. Nor, however, did(cid:13) Westchester obtain a release from the County despite the(cid:13) fact that Westchester’s policy required a completion letter(cid:13) from the County before allowing the Letter of Credit to(cid:13) expire. Moreover, Westchester twice attempted(cid:13) unsuccessfully to obtain written releases from the County.(cid:13) On July 1, 1996, Microvote filed an action against the(cid:13) County in the United States District Court for the Eastern(cid:13) District of Pennsylvania. The complaint alleged that the(cid:13) County had breached an oral agreement to purchase 350 of(cid:13) the 390 DREs that Microvote had loaned the County. The(cid:13) District Court dismissed the action pursuant to Fed. R. Civ.(cid:13) P. 12(b)(6) on the ground that Pennsylvania law requires all(cid:13) _________________________________________________________________(cid:13) 1. The Microvote machines have been repurchased by other counties.(cid:13) 5(cid:13) contracts with local governments to be in writing. We(cid:13) affirmed that decision in Microvote v. Montgomery County,(cid:13) 124 F.3d 187 (3d Cir. 1997).(cid:13) On October 10, 1997, the County brought this diversity(cid:13) action, alleging breach of contract, of warranty, and of the(cid:13) performance bond, as well as negligence, fraud, and(cid:13) wrongful use of civil process. Microvote moved to dismiss(cid:13) on grounds that the County should have raised the claims(cid:13) as compulsory counterclaims in Microvote v. Montgomery(cid:13) County, that the complaint was untimely, and there was a(cid:13) lack of personal jurisdiction. Alternatively, Microvote moved(cid:13) for a transfer of venue. The District Court denied the(cid:13) motions.(cid:13) Following discovery, defendants moved for summary(cid:13) judgment. The District Court granted summary judgment to(cid:13) defendants on the negligence claim, the fraud claims(cid:13) arising prior to the November 1995 election, and the(cid:13) wrongful use of civil proceedings claim, but denied(cid:13) defendants’ motion for summary judgment with respect to(cid:13) the remaining fraud claims, the breach of contract claim,(cid:13) the breach of warranty claim, and the performance bond(cid:13) claim. One week prior to the start of trial, Carson entered(cid:13) into a Covenant Not to Sue with the County.2(cid:13) The jury trial commenced against Microvote and(cid:13) Westchester on October 18, 2000. At the close of the(cid:13) County’s case, Microvote and Westchester moved for(cid:13) judgment as a matter of law pursuant to Fed. R. Civ. P.(cid:13) 50(a). The District Court reserved ruling on the motions. At(cid:13) the close of evidence, Microvote and Westchester renewed(cid:13) their motions, which the Court denied. On November 1,(cid:13) 2000, the jury returned a verdict. The jury found in favor(cid:13) of Microvote on the breach of contract, the breach of(cid:13) express warranties, and the fraud counts. However, the(cid:13) jury found that Microvote had breached implied warranties(cid:13) of merchantability and fitness for a particular purpose and(cid:13) _________________________________________________________________(cid:13) 2. According to a newspaper article, of which the District Court took(cid:13) judicial notice, Carson paid the County $587,000 in exchange for the(cid:13) County agreeing not to sue Carson. At oral argument, plaintiff ’s counsel(cid:13) stated that the actual settlement was greater than the amount reported(cid:13) in the press.(cid:13) 6(cid:13) that Westchester had violated the performance bond. The(cid:13) jury awarded Montgomery County $1,048,500 in damages.(cid:13) In separate post-trial motions, Microvote and Westchester(cid:13) moved to amend the judgment, for relief from final(cid:13) judgment, for judgment as a matter of law, and for a new(cid:13) trial. The County also filed a post-trial motion seeking to(cid:13) mold the jury verdict, judgment as a matter of law, and a(cid:13) new trial. The District Court denied all the post-trial(cid:13) motions in separate orders dated June 25, 2001. Microvote(cid:13) and Westchester timely appealed. The County did not(cid:13) appeal the denial of its post-trial motion.(cid:13) II. Jurisdiction and Standard of Review(cid:13) The District Court had diversity jurisdiction over this(cid:13) matter pursuant to 28 U.S.C. S1332. We have appellate(cid:13) jurisdiction pursuant to 28 U.S.C. S1291.(cid:13) We subject "the District Court’s interpretation of Federal(cid:13) Rule of Evidence 702 to plenary review. However, we review(cid:13) the District Court’s decision to admit or exclude scientific(cid:13) evidence for an abuse of discretion." In re TMI Litig., 193(cid:13) F.3d 613, 666 (3d Cir. 1999) (citation omitted). We exercise(cid:13) plenary review over an order denying a motion for judgment(cid:13) as a matter of law and apply the same standard as the(cid:13) District Court. Lightning Lube, Inc. v. Witco Corp., 4 F.3d(cid:13) 1153, 1166 (3d Cir. 1993). Motions for judgment as a(cid:13) matter of law are granted only if, "viewing the evidence in(cid:13) the light most favorable to the nonmovant and giving it the(cid:13) advantage of every fair and reasonable inference, there is(cid:13) insufficient evidence from which a jury reasonably could(cid:13) find liability." Id.(cid:13) The scope of review of erroneous jury instructions is(cid:13) whether the charge, "taken as a whole, properly appraises(cid:13) the jury of the issues and the applicable law." Smith v.(cid:13) Borough of Wilkinsburg, 147 F.3d 272, 275 (3d Cir. 1998)(cid:13) (citation and quotation omitted). We review a District(cid:13) Court’s denial of a motion for a new trial pursuant to Fed.(cid:13) R. Civ. P. 59 and the denial of a motion pursuant to Fed.(cid:13) R. Civ. P. 60(b) for an abuse of discretion. See Reform Party(cid:13) of Allegheny County v. Allegheny County Dep’t. of Elections,(cid:13) 174 F.3d 305, 311 (3d Cir. 1999); Olefins Trading Inc. v.(cid:13) 7(cid:13) Han Yang Chem. Corp., 9 F.3d 282, 289 (3d Cir. 1993). An(cid:13) abuse of discretion occurs when "the district court’s(cid:13) decision rests upon a clearly erroneous finding of fact, an(cid:13) errant conclusion of law or an improper application of law(cid:13) to fact." Reform Party of Allegheny County , 174 F.3d at 311.(cid:13) III. Discussion(cid:13) A. Statute of Limitations and Nullum Tempus (cid:13) The District Court did not err in denying Westchester’s(cid:13) motion for judgment as a matter of law on the ground that(cid:13) the statute of limitations bars this action because the(cid:13) doctrine of nullum tempus occurit regi ("time does not run(cid:13) against the king") applies here. Under the doctrine of(cid:13) nullum tempus, the statute of limitations does not bar(cid:13) actions brought by the state or its agencies, unless a(cid:13) statute expressly so provides. See City of Philadelphia v.(cid:13) Lead Indus. Ass’n, Inc., 994 F.2d 112, 118 (3d Cir. 1993).(cid:13) "The rationale of this rule is that the Commonwealth, as a(cid:13) plaintiff, seeks the vindication of public rights and the(cid:13) protection of public property." Id.; accord Broselow v.(cid:13) Fisher, ___ F.3d ___ (3d Cir. 2003) (slip op. at 8). The(cid:13) County, however, is a political subdivision of the(cid:13) Commonwealth. The doctrine of nullum tempus is not(cid:13) available to political subdivisions of the state except in(cid:13) limited circumstances of obligations imposed by law:(cid:13) [S]tatutes of limitations cannot be pleaded against such(cid:13) political subdivisions when they are seeking to enforce(cid:13) strictly public rights, that is, when the cause of action(cid:13) accrues to them in their governmental capacity and the(cid:13) suit is brought to enforce an obligation imposed by law(cid:13) as distinguished from one arising out of an agreement(cid:13) voluntarily entered into by the defendant.(cid:13) Lead Indus. Ass’n, Inc., 944 F.2d at 119 (quoting City of(cid:13) Philadelphia v. Holmes Elec. Protective Co., 6 A.2d 884(cid:13) (1939)).(cid:13) Nullum tempus does not apply to a common law contract(cid:13) claim against a political subdivision, arising out of a(cid:13) voluntary agreement, because such a claim does not accrue(cid:13) solely to a governmental entity. However, where a(cid:13) 8(cid:13) subdivision of the Commonwealth is required by the(cid:13) Constitution or by statute to engage in an activity, nullum(cid:13) tempus applies to contracts entered into with private(cid:13) parties in order to fulfill this duty. See Lead Indus. Ass’n,(cid:13) Inc., 994 F.2d at 120-21 (holding that nullum tempus does(cid:13) not apply where the City of Philadelphia and state housing(cid:13) authorities bring an action against a lead paint(cid:13) manufacturer and trade association to recover the cost of(cid:13) abating lead paint in public housing because the plaintiffs(cid:13) were not "required by law . . . to contract for the purchase(cid:13) of lead-based paint or to construct the buildings in which(cid:13) that paint was used."); Mt. Lebanon School Dist. v. W.R.(cid:13) Grace and Co., 607 A.2d 756 (Pa. Super. Ct. 1992) (holding(cid:13) that the doctrine of nullum tempus applies where a school(cid:13) district brings breach of contract and tort claims against(cid:13) contractors and manufacturers for defects in the(cid:13) construction of school buildings because the school district(cid:13) was required by the Constitution and statute to build the(cid:13) schools and the school district contracted with private(cid:13) parties in order to fulfil this duty); Stroudsburg Area School(cid:13) Dist. v. R.K.R. Assoc./Architects, 611 A.2d 1276 (Pa. Super.(cid:13) Ct. 1992), app. denied, 622 A.2d 1377 (1993) (same).(cid:13) The nullum tempus doctrine applies in this case because,(cid:13) as in Mt. Lebanon School District and Stroudsburg Area(cid:13) School District, but unlike in Lead Industries Association,(cid:13) Inc., the County was required by law to hold elections and(cid:13) to procure electronic voting machines. The County was(cid:13) required "[t]o purchase, preserve, store and maintain(cid:13) primary and election equipment of all kinds, including . . .(cid:13) voting machines." 25 P.S. S2642(c). Further, in November(cid:13) 1993, the citizens of the County voted to replace the(cid:13) County’s manual voting machines with electronic voting(cid:13) machines. Following this vote, the County was required by(cid:13) law to purchase electronic machines. Under Pennsylvania(cid:13) law, if "a majority of the qualified registered electors voting(cid:13) on the question in any county . . . vote in favor of the(cid:13) adoption of an electronic voting system, the county board of(cid:13) elections of that county shall purchase, lease, or otherwise(cid:13) procure . . . the components of an electronic voting(cid:13) system." 25 P.S. S3031.4(a). Thus, as in Mt. Lebanon School(cid:13) District, the County is:(cid:13) 9(cid:13) unquestionably compelled by law . . . to provide(cid:13) [electronic voting machines]. The practical implications(cid:13) of such a duty require [the County], in [its](cid:13) governmental capacity, to enter into contractual(cid:13) relations with private parties who can construct and(cid:13) maintain such suitable facilities. Where, as here, a(cid:13) cause of action accrues to a party in its governmental(cid:13) capacity and the suit is brought to enforce strictly(cid:13) public rights and an obligations imposed by . . .(cid:13) statute, such as that herein, the doctrine of nullum(cid:13) tempus applies.(cid:13) Mt. Lebanon Sch. Dist., 607 A.2d at 762.(cid:13) Further, contrary to Westchester’s assertion, the(cid:13) acquisition of the performance bond also was an obligation(cid:13) imposed by law. Under Pennsylvania law:(cid:13) The successful bidder, when advertising is required(cid:13) herein, shall be required to furnish a bond with(cid:13) suitable reasonable requirements guaranteeing(cid:13) performance of the contract, with sufficient surety in(cid:13) the amount of fifty per centum (50%) of the amount of(cid:13) the contract, within thirty (30) days after the contract(cid:13) has been awarded, . . . unless the commissioners shall(cid:13) waive the bond requirement in the bid specification.(cid:13) 16 P.S. S5001(c). In this case, the bond requirement was(cid:13) not waived in the bid specification.(cid:13) Moreover, as the District Court held, the performance(cid:13) bond should not be examined apart from the underlying(cid:13) contract in determining whether nullum tempus applies.(cid:13) The purpose of the performance bond was to ensure that(cid:13) the County was able to perform its statutorily mandated(cid:13) duty to obtain electronic voting machines. Therefore, in(cid:13) bringing this action to recover under the performance bond,(cid:13) the County was enforcing the obligation to provide(cid:13) electronic voting machines imposed by law. As Microvote(cid:13) represented at oral argument, the County most likely would(cid:13) not be able to recover on its judgment absent the(cid:13) performance bond because of Microvote’s limited assets.(cid:13) B. Expert Witness(cid:13) The District Court did not abuse its discretion in(cid:13) excluding the testimony of defendants’ expert, Robert J.(cid:13) 10(cid:13) Naegele. Federal Rule of Evidence (FRE) 702 was amended(cid:13) in 2000 to provide that:(cid:13) If scientific, technical, or other specialized knowledge(cid:13) will assist the trier of fact to understand the evidence(cid:13) or to determine a fact in issue, a witness qualified as(cid:13) an expert by knowledge, skill, experience, training, or(cid:13) education, may testify thereto in the form of an opinion(cid:13) or otherwise, if (1) the testimony is based upon(cid:13) sufficient facts or data, (2) the testimony is the product(cid:13) of reliable principles and methods, and (3) the witness(cid:13) has applied the principles and methods reliably to the(cid:13) facts of the case.(cid:13) FRE 702. This rule was amended in response to Daubert v.(cid:13) Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See(cid:13) FRE 702 Advisory Committee Notes. In Daubert, the(cid:13) Supreme Court established a "gatekeeping role for the(cid:13) judge" in determining the reliability and relevancy of expert(cid:13) testimony under FRE 702. Id. at 589. The Court stated:(cid:13) Faced with a proffer of expert scientific testimony,. . .(cid:13) the trial judge must determine at the outset, pursuant(cid:13) to Rule 104(a), whether the expert is proposing to(cid:13) testify to (1) scientific knowledge that (2) will assist the(cid:13) trier of fact to understand or determine a fact in issue.(cid:13) This entails a preliminary assessment of whether the(cid:13) reasoning or methodology underlying the testimony is(cid:13) scientifically valid and of whether that reasoning or(cid:13) methodology properly can be applied to the facts in(cid:13) issue.(cid:13) Id. at 592-93.(cid:13) Daubert identifies a non-exhaustive list of factors for(cid:13) consideration when determining the reliability of proffered(cid:13) testimony. This includes whether 1) a theory or technique(cid:13) is scientific knowledge that will assist the trier of fact; 2)(cid:13) the theory or technique has been subjected to peer review(cid:13) and publication; 3) the known or potential rate of error, and(cid:13) the existence and maintenance of standards controlling the(cid:13) technique’s operation; and 4) the general acceptance of the(cid:13) theory or technique. Id.; see also Oddi v. Ford Motor Co.,(cid:13) 234 F.3d 136, 145 (3d Cir. 2000), cert. denied , 532 U.S.(cid:13) 11(cid:13) 921 (2001); In re TMI Litig., 193 F.3d at 664; In re Paoli R.R.(cid:13) Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994).(cid:13) The Supreme Court concluded that the inquiry is a(cid:13) flexible one, but that trial courts should focus"solely on(cid:13) principles and methodology, not on the conclusions they(cid:13) generate." Daubert, 509 U.S. at 595. However, the Supreme(cid:13) Court has noted that conclusions and methodology are not(cid:13) entirely distinct from one another, and that a "court may(cid:13) conclude that there is simply too great a gap between the(cid:13) data and the opinion proffered." Gen. Elec. Co. v. Joiner,(cid:13) 522 U.S. 136, 146 (1997). Daubert was decided in the(cid:13) context of scientific knowledge, but the Supreme Court has(cid:13) extended its reasoning to the kind of "technical or other(cid:13) specialized knowledge" at issue here. See Kumho Tire Co.,(cid:13) Ltd. v. Carmichael, 526 U.S. 137, 141 (1999).(cid:13) While FRE 702 is the "primary locus" of a District Court’s(cid:13) gatekeeping role, it also must look to other rules, including(cid:13) FRE 703. Daubert, 509 U.S. at 590; In re TMI Litig., 193(cid:13) F.3d at 696. FRE 703 provides that:(cid:13) The facts or data in the particular case upon which an(cid:13) expert bases an opinion or inference may be those(cid:13) perceived by or made known to the expert at or before(cid:13) the hearing. If of a type reasonably relied upon by(cid:13) experts in the particular field in forming opinions or(cid:13) inferences upon the subject, the facts or data need not(cid:13) be admissible in evidence in order for the opinion or(cid:13) inference to be admitted.(cid:13) FRE 703. When "a trial judge analyzes whether an expert’s(cid:13) data is of a type reasonably relied on by experts in the field,(cid:13) he or she should assess whether there are good grounds to(cid:13) rely on this data to draw the conclusion reached by the(cid:13) expert." In re TMI Litig., 193 F.3d at 697. If the data(cid:13) underlying "the expert’s opinion are so unreliable that no(cid:13) reasonable expert could base an opinion on them, the(cid:13) opinion resting on that data must be excluded." Id.(cid:13) In this case, the District Court acted within its discretion(cid:13) when it excluded the videotaped deposition of Naegele,(cid:13) author of the Federal Election Commission ("FEC")’s design(cid:13) performance and testing requirements for Punchcard(cid:13) Marksense and Direct Recording Electronic Voting Systems.(cid:13) 12(cid:13) In the deposition, Naegele testified that the Microvote DREs(cid:13) met or exceeded the FEC standards in the April 23, 1996,(cid:13) primary election. While the District Court did not question(cid:13) Naegele’s qualifications as an expert to offer such(cid:13) testimony, the testimony of a witness, who is well-qualified(cid:13) by experience, still may be barred if it is not based on(cid:13) sound data. See Kumho Tire Co., 526 U.S. at 153. The trial(cid:13) judge, after viewing the videotape deposition, held that the(cid:13) videotape was inadmissible because it was unreliable,(cid:13) noting that "I’m a little concerned about some of the things(cid:13) that were shown to him he didn’t seem to know where they(cid:13) were from or what the source of them were. That, I find(cid:13) disturbing."(cid:13) In his deposition,3 Naegele indicates that he relied on a(cid:13) document prepared by Microvote’s National Sales Director,(cid:13) Gary Greenhalgh, in which Greenhalgh, who was not(cid:13) present during the April 1996 elections, made a"reverse"(cid:13) "guestimate" about the amount of time that the machines(cid:13) were down. Greenhalgh did not base his determination on(cid:13) primary data. Naegele admited that he did not know what(cid:13) the document was, who created it, or how it was created.(cid:13) Naegele also relied on other documents, some of which(cid:13) apparently were derived from the Greenhalgh document.(cid:13) Again, Naegele could not identify the source or basis of(cid:13) some of these documents, and Naegele admitted that he did(cid:13) not measure actual election use data to determine how long(cid:13) the machines were down. While Naegele testified that he(cid:13) relied on audit trail tapes, these were a sampling of tapes(cid:13) that were selected by an attorney for Carson. See In re TMI(cid:13) Litig., 193 F.3d at 697-98 (holding that a District Court(cid:13) properly excluded expert testimony where the sole basis for(cid:13) the testimony was summaries prepared by a party’s(cid:13) attorney).(cid:13) Under these circumstances, we conclude that the District(cid:13) Court did not abuse its discretion in excluding Naegele’s(cid:13) testimony because the court reasonably concluded that the(cid:13) data underlying Naegele’s opinion was so unreliable that no(cid:13) reasonable expert could base an opinion on it. See id.(cid:13) _________________________________________________________________(cid:13) 3. Naegele was not subjected to cross-examination at his deposition(cid:13) because plaintiff ’s attorney was not present.(cid:13) 13(cid:13) C. Damages(cid:13) The District Court did not err in denying defendants’(cid:13) motion for judgment as a matter of law on the ground that(cid:13) the exclusive remedy under the contract was repair and(cid:13) replacement of defective machines. It is clear from the law(cid:13) and the evidence that a reasonable jury could have(cid:13) concluded that monetary damages were available to the(cid:13) County. The Uniform Commercial Code provides as follows:(cid:13) (a) General rule.--Subject to the provisions of(cid:13) subsections (b) and (c) and of section 2718 (relating to(cid:13) liquidation or limitation of damages; deposits):(cid:13) (1) The agreement may provide for remedies in(cid:13) addition to or in substitution for those provided in(cid:13) this division and may limit or alter the measure of(cid:13) damages recoverable under this division, as by(cid:13) limiting the remedies of the buyer to return of the(cid:13) goods and repayment of the price or to repair and(cid:13) replacement of nonconforming goods or parts.(cid:13) (2) Resort to a remedy as provided is optional(cid:13) unless the remedy is expressly agreed to be(cid:13) exclusive, in which case it is the sole remedy.(cid:13) 13 Pa. C.S.A. S2719(a).(cid:13) In this case, the repair and replacement remedy is an(cid:13) optional remedy, not the sole remedy, because Microvote(cid:13) and the County did not expressly agree that repair and(cid:13) replacement would be the exclusive remedy. The May 25,(cid:13) 1994 sales agreement provides as follows:(cid:13) It is further agreed that in case any of the said(cid:13) materials, equipment and/or supplies furnished and(cid:13) delivered under this contract are rejected by the(cid:13) authorized or proper County Agent as unsuitable or(cid:13) unfit, such materials, equipment, and/or supplies so(cid:13) rejected shall be removed at once by [Microvote], and(cid:13) other materials, equipment, and/or supplies of the(cid:13) proper kind and quality, and fully up to the(cid:13) requirements of the contract, furnished in place(cid:13) thereof, to the satisfaction of County Agent, at the cost(cid:13) and expense of [Microvote]; provided, however, that in(cid:13) the event [Microvote] fails, neglects, or refuses to furnish(cid:13) 14(cid:13) the replacement therefor within sixty (60) days after(cid:13) receipts of written request so to do, County may(cid:13) purchase said replacements and [Microvote] agrees to be(cid:13) liable for costs thereof. (cid:13) The remedies herein provided shall be in addition to(cid:13) and not in substitution of the rights and remedies which(cid:13) would otherwise be vested in [the County] under the(cid:13) terms of this agreement, including those contained in(cid:13) the bid, proposal, and specifications, all of which rights(cid:13) and remedies are specifically reserved by [the County].(cid:13) (emphasis added). Rather than expressly limiting the(cid:13) County’s remedy exclusively to repair and replacement, this(cid:13) contractual provision explicitly states that the repair and(cid:13) replacement remedy does not substitute for other remedies(cid:13) and that the County retains the right to seek other(cid:13) remedies.(cid:13) D. Effect of Carson Settlement on Judgment Against(cid:13) Microvote and Westchester(cid:13) The District Court did not abuse its discretion in denying(cid:13) defendants’ motion pursuant to Fed. R. Civ. P. 60(b) to "off-(cid:13) set" the judgment against non-settling defendants(cid:13) Microvote and Westchester by the amount of money the(cid:13) County received from co-defendant Carson as part of a(cid:13) settlement. We come to this conclusion because the non-(cid:13) settling defendants waived any claim to the settlement.(cid:13) Under Pennsylvania law, a "non-settling tortfeasor is(cid:13) required to pay his full pro-rata share." Charles v. Giant(cid:13) Eagle Markets, 522 A.2d 1, 2 (1987). Accordingly, in Rocco(cid:13) v. Johns-Manville Corp., we held that, under the(cid:13) Pennsylvania Joint Tortfeasors Act, settlement by a joint(cid:13) tortfeasor reduces the amount a plaintiff may recover from(cid:13) the non-settling co-defendant to his pro rata share or the(cid:13) amount paid for the release, whichever is greater. See 754(cid:13) F.2d 110, 111 (3d Cir. 1985); 42 Pa.C.S.A. S8326. However,(cid:13) "[u]nder Pennsylvania law, if the released party is not a(cid:13) joint tortfeasor, he is considered a volunteer. In that(cid:13) circumstance, the amount paid for the release is not(cid:13) deducted from the recovery against a nonreleased party."(cid:13) Id. In order to reduce a plaintiff ’s recovery, the co-(cid:13) defendant’s culpability as a joint tortfeasor must be(cid:13) 15(cid:13) established through adjudication or concession of joint(cid:13) tortfeasor status in the settlement. See id. at 114-15.(cid:13) In this case, as the District Court noted, neither(cid:13) Microvote nor Westchester submitted a jury interrogatory(cid:13) for apportionment of liability. On the contrary, Microvote(cid:13) took "violent exception" to special jury interrogatories(cid:13) proposed by Carson prior to settling that would have(cid:13) apportioned damages between Carson and Microvote.(cid:13) Further, defendants did not present any evidence at trial(cid:13) that would support a jury finding regarding apportionment.(cid:13) They did not attempt to keep Carson in the case in order to(cid:13) apportion liability, nor did they request substitution of a(cid:13) settlement that delineated Carson’s pro-rata share of(cid:13) liability under Griffin v. United States, 500 F.2d 1059 (3d(cid:13) Cir. 1974). As we held in Rocco:(cid:13) One would have expected the nonsettling defendants to(cid:13) either have requested substitution of Griffin -type(cid:13) releases or judicial determination of liability. The(cid:13) nonsettling defendants took no action, apparently(cid:13) acquiescing in the settling part[y’s] absence from the(cid:13) trial. That failure to act may be considered a waiver of(cid:13) any benefit from the [settling defendant’s release] or(cid:13) the amounts paid for [it].(cid:13) 754 F.2d at 115. Since the jury did not apportion liability(cid:13) and the settlement did not mention the non-settling(cid:13) defendants’ liability, Microvote and Westchester have(cid:13) waived any claim to the settlement under Giant Eagle(cid:13) Markets and Rocco.4(cid:13) _________________________________________________________________(cid:13) 4. Defendants argue that Giant Eagle Markets and Rocco do not apply to(cid:13) the present case because those cases involved tort claims, while the(cid:13) present case is for breach of warranty, which defendants claim is(cid:13) contractual in nature. It is unlikely that the Pennsylvania Supreme(cid:13) Court would adopt an off-set rule for breach of warranty claims that(cid:13) differs from the rule in the tort context in light of Williams v. West Penn(cid:13) Power Co., 467 A.2d 811 (1983) (holding that the statute of limitations(cid:13) for tort claims does not apply to breach of warranty claims, even if the(cid:13) breach results in a personal injury). In Williams, the Pennsylvania(cid:13) Supreme Court noted that:(cid:13) The Superior Court in [Salvador v. Atlantic Steel Boiler Co, 389 A.2d(cid:13) 1148 (Pa. Super. Ct. 1978), aff ’d, 424 A.2d 497 (1981)] strayed into(cid:13) 16(cid:13) Even if defendants had not waived an off-set claim, the(cid:13) jury’s verdict does not suggest that defendants are entitled(cid:13) to an off-set. The jury found that the County sustained(cid:13) damages in the amount of $1,048,500. This amount is(cid:13) about half of the difference between the value of the DREs(cid:13) as warranted ($3,822,000) and the trade-in value of the(cid:13) DREs ($1,348,500). Since the jury neither heard evidence(cid:13) regarding Carson’s liability to the County, nor received(cid:13) instruction from the District Court that they were to(cid:13) determine Carson’s liability, nothing in the verdict suggests(cid:13) that the $1,048,500 award represents the full amount of(cid:13) damages that the County suffered from the actions both of(cid:13) the non-settling defendants and of Carson. See Giant Eagle(cid:13) Markets, 522 A.2d at 3 ("There is no basis for concluding(cid:13) the jury verdict must serve as a cap on the total recovery(cid:13) that a plaintiff may receive.").5(cid:13) _________________________________________________________________(cid:13) error by embracing a tort/contract dichotomy. The inherent fallacy(cid:13) of such a dichotomy is that in the area of products liability we enter(cid:13) the borderland of tort and contract. It is not a question of whether(cid:13) a claim sounds in tort or assumpsit. Rather it sounds in both.(cid:13) Therefore, there is no legitimacy in attempting to use such a(cid:13) dichotomy as the predicate for distinction as to the limitation to be(cid:13) given the action.(cid:13) Id. at 817(cid:13) 5. We also conclude that Westchester’s three remaining arguments lack(cid:13) merit. First, Westchester’s argument that the District Court erred in(cid:13) declining to reduce the judgment against it by the amount that the jury(cid:13) found that Westchester had been prejudiced by the County’s failure to(cid:13) timely notify it of Microvote’s default lacks merit because the County had(cid:13) no contractual obligation to provide notice of default. Under(cid:13) Pennsylvania law, creditors such as the County are not required to(cid:13) provide notice to a surety that a principal has defaulted, unless the(cid:13) contract requires such notice. See United States v. Minnesota Trust Co.,(cid:13) 59 F.3d 87, 90 (8th Cir. 1995); In re Sherry & O’Leary Inc., 148 B.R.(cid:13) 248, 256 (W.D. Pa. 1992). Second, even if the jury’s verdict that(cid:13) Microvote breached implied warrantees of merchantability and fitness for(cid:13) a particular purpose are inconsistent with the jury’s finding that(cid:13) Microvote did not breach the May 25, 1994, contract with the County,(cid:13) there is sufficient evidence to support the verdict on the breach of(cid:13) warranty claim and "consistent jury verdicts are not, in themselves,(cid:13) necessary attributes of a valid judgment." Mosley v. Wilson, 102 F.3d 85,(cid:13) 90 (3d Cir. 1996). In Mosley, this Court held that "in certain(cid:13) 17(cid:13) IV. Conclusion(cid:13) For the reasons stated above, the judgment of the District(cid:13) Court will be affirmed.(cid:13) A True Copy:(cid:13) Teste:(cid:13) Clerk of the United States Court of Appeals(cid:13) for the Third Circuit(cid:13) _________________________________________________________________(cid:13) circumstances, a court retains the authority, even in a civil case, to(cid:13) allow an apparently inconsistent verdict to stand." Id. (quoting Los(cid:13) Angeles v. Heller, 475 U.S. 796, 805 (Stevens, J., dissenting). Those(cid:13) circumstances are where the verdict appears to be the result of(cid:13) compromise, as opposed to jury confusion. See Heller, 475 U.S. at 806(cid:13) n. 12, 806 n. 13 (Stevens, J., dissenting). In the present case, the(cid:13) apparently inconsistent verdict would appear to be the result of(cid:13) compromise, as evidenced by the fact that the jury awarded the County(cid:13) approximately half the expectation damages the County sought on its(cid:13) breach of contract claim. Finally, the District Court did not err in(cid:13) declining to instruct the jury that the County could only recover for(cid:13) defective individual machines because the machines, along with the(cid:13) MEMS software, constitute one voting system.(cid:13) 18
